Copyright and digital exhaustion, unanswered questions and uncertain treatment in the EU

Abstract

In 2012 the Court of Justice of the European Union delivered a judgement dealing with second hand software and the so called digital exhaustion principle. It was heralded by some and criticised by others, however, despite providing a much awaited insight into the CJEU's interpretation of the digital world the judgment itself was based on some very creative interpretations of relatively old directives which did not quite tackle the uncertainty surrounding the issue of exhaustion. It's extension and interpretation of other forms of digital content remains unclear and the national courts seem to disagree amongst themselves and find some difficulty in interpreting the CJEU's judgment. The situation 4 years after the 2012 judgment is arguably the same, the single market requires clear indications as to whether exhaustion can be extended to digital goods or a clear cut negative response. The mind-set established by some commentaries which interpreted the CJEU's stance in the Allposters judgment to preclude digital exhaustion has been called into question by the Advocate General's opinion in the VOB case whose final judgment is eagerly awaited.